Citation Nr: 0525401
Decision Date: 09/16/05 Archive Date: 09/29/05
DOCKET NO. 04-26 527 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for residuals of a
broken jaw.
2. Entitlement to service connection for residuals of dental
trauma, to include for compensation and/or for treatment
purposes.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
ATTORNEY FOR THE BOARD
Michael A. Pappas, Counsel
INTRODUCTION
The veteran-appellant served on active duty from August 1961
to July 1963.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a March 2004 rating decision of the
Department of Veterans Affairs (VA), Detroit, Michigan,
Regional Office (RO) that denied the claim of entitlement to
service connection for residuals of a broken jaw. The
veteran perfected an appeal of that decision, and the case is
ready for appellate review.
The issue of entitlement to service connection for residuals
of dental trauma, to include for compensation and/or for
treatment purposes is addressed in the REMAND portion of the
decision below and is REMANDED to the RO and the medical
administration service of the VA Medical Center (VAMC) via
the Appeals Management Center (AMC), in Washington, D.C.
FINDINGS OF FACT
1. All evidence necessary for review of the issue on appeal
has been obtained, and VA has satisfied the duty to notify
the veteran of the law and regulations applicable to his
claim and the evidence necessary to substantiate it.
2. Evidence of a broken jaw was not shown in service, and no
probative and competent medical evidence has been received
which shows the current existence of residuals of a broken
jaw or which links or relates residuals of a broken jaw
disorder to the veteran's period of active service.
CONCLUSION OF LAW
The criteria for a grant of service connection for residuals
of a broken jaw have not been met. 38 U.S.C.A. §§ 1110,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant is seeking service connection for residuals of
a broken jaw that he claims that he sustained in service. He
alleges that he was involved in a fight in service in which
he was "hit in the mouth by a guy wielding a dogging wrench
(piece of pipe)." He states that he was told to report that
the injury had been sustained in a fall against a ladder. He
further argues that he has submitted private medical evidence
supporting his allegation that in addition to the
displacement of four of his front teeth in service, he
sustained a broken jaw bone as well. He believes that
service connection should be established for residuals of a
broken jaw on that basis.
In the interest of clarity, the Board will initially address
the matter of whether this case has been appropriately
developed for appellate purposes. Thereafter, the Board will
present pertinent laws and regulations and analyze the
appellant's claims.
VA's Duties to Notify and Assist the Claimant
The Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (VCAA) redefines the obligations
of VA with respect to the duty to assist and includes an
enhanced duty to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits.
38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159
(2004). VA is required to provide the claimant with notice
of what information or evidence is to be provided by the
Secretary and what information or evidence is to be provided
by the claimant with respect to the information and evidence
necessary to substantiate the claim for VA benefits.
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
The Board finds that VA's enhanced duty to notify under the
VCAA has been met. In this regard, the Board notes that the
RO provided the veteran with a copy of the March 2004 rating
decision and July 2004 statement of the case which included a
discussion of the facts of the claims, notification of the
basis of the decision, and a summary of the evidence used to
reach that decision. The July 2004 statement of the case
provided the veteran with notice of all the laws and
regulations pertinent to his claim as well as the law and
implementing regulations of the VCAA.
Further, in correspondence dated in November 2003, the RO
advised the veteran of VA's duties under the VCAA and the
delegation of responsibility between VA and the veteran in
procuring the evidence relevant to his claim, including which
portion of the information and evidence was to be provided by
the veteran and which portion VA would attempt to obtain on
behalf of the veteran. Quartuccio, 16 Vet. App. at 187. The
VCAA notice advised the veteran of what the evidence must
show to establish entitlement to service connection for the
disability at issue.
During the course of this appeal, the United States Court of
Appeals for Veterans Claims (Court) handed down Pelegrini v.
Principi, 18 Vet. App. 112 (2004) (Pelegrini II). In
Pelegrini II, the Court reaffirmed that the enhanced duty to
notify provisions under the VCAA should be met prior to an
initial unfavorable agency of original jurisdiction (AOJ)
decision on the claim. In the instant appeal, the Board
finds that any defect with respect to the timing of the VCAA
notice requirement was harmless error. In this case, the
notice provided to the veteran in November 2003 was given
prior to the first AOJ adjudication of the claim, as well as
prior to the transfer and certification of the veteran's case
to the Board. The veteran has been provided with every
opportunity to submit evidence and argument in support of his
claims and to respond to VA notices. Therefore, to decide
the appeal would not be prejudicial error to the veteran.
The Board also acknowledges that the November 2003 VCAA
notice contained no specific request for the veteran to
provide any evidence in the veteran's possession that
pertained to the claims or something to the effect that the
veteran give VA everything he had that pertained to his
claims. 38 C.F.R. § 3.159(b)(1) (2004). A complying notice,
however, need not necessarily use the exact language of the
regulation so long as that notice properly conveys to a
claimant the essence of the regulation. Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
Essentially, throughout the course of this appeal, the RO
asked the veteran for all the information and evidence
necessary to substantiate his claims-that is, evidence of the
type that should be considered by VA in assessing his claim.
A generalized request in the initial VCAA notice for any
other evidence pertaining to the claims would have been
superfluous and unlikely to lead to the submission of
additional pertinent evidence. Therefore, it can be
concluded, based on the particular facts and circumstances of
the case, the omission of the request for "any evidence in
the claimant's possession that pertains to the claim" in the
initial notice did not harm the veteran, and it would be
legally proper to render a decision in the case without
further notice under the regulation. Id.
The Board concludes that the requirements of the notice
provisions of the VCAA have been met, and there is no
outstanding duty to inform the veteran that any additional
information or evidence is needed. Quartuccio, 16 Vet. App.
at 187.
In this case, the RO has not provided a medical examination
or secured a medical opinion regarding whether the veteran
has current residuals of a broken jaw that could be related
to service. The Board has accordingly considered whether
such a medical opinion should be obtained. Significantly,
the veteran's service records do not document the presence of
a broken jaw in service. Given the absence of any relevant
disease or injury in service, any current medical opinion
regarding a nexus between the veteran's current disability
and his military service would be based on the appellant's
unsupported contentions as to what occurred in service. It
is well-established, that a medical opinion that is based on
a claimant's reported history is of no probative value. See
Godfrey v. Brown, 8 Vet. App. 113, 121 (1995); see also
Leshore v. Brown, 8 Vet. App. 406, 409 (1995); Swann v.
Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet.
App. 458, 461 (1993).
In this case, as explained in detail below, the record is
devoid of any evidence that the veteran had a broken jaw in
service or at any time thereafter. The veteran has not made
the RO or the Board aware of any other evidence relevant to
his appeal that needs to be obtained. It does not appear
that there are any additional pertinent treatment records to
be requested or obtained. Based on the foregoing, the Board
finds that all relevant facts have been properly and
sufficiently developed in this appeal and no further
development is required to comply with the duty to assist the
veteran in developing the facts pertinent to his claim of
entitlement to service connection for residuals of a broken
jaw. Accordingly, the Board will proceed with appellate
review.
Relevant law and regulations
In general, service connection may be granted for disability
or injury incurred in or aggravated by active military
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303
(2004).
Establishing service connection for a disability requires the
existence of a current disability and a relationship or
connection between that disability and a disease contracted
or an injury sustained during service. 38 U.S.C.A. § 1110
(West 2002); 38 C.F.R. § 3.303 (2004). Notwithstanding the
lack of a diagnosis of a disability during service, service
connection may still be granted if all of the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 U.S.C.A. § 1113(b) (West
2002); 38 C.F.R. § 3.303(d) (2004); Cosman v. Principi, 3
Vet. App. 503, 505 (1992).
In order to prevail on the issue of direct service connection
there must be (1) medical evidence of a current disability;
(2) medical evidence, or in certain circumstances, lay
evidence of in-service occurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between an in-
service injury or disease and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990); 38 U.S.C.A. § 5107(b) (West 2002).
In Gilbert, the CAVC stated that "a veteran need only
demonstrate that there is an 'approximate balance of positive
and negative evidence' in order to prevail."
To deny a claim on its merits, the preponderance of the
evidence must be against the claim. Alemany v. Brown, 9 Vet.
App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Analysis
It is the veteran's primary contention that he sustained a
broken jaw while in service. He claims that although the
service medical records show that he had sustained an injury
in a fall against a ladder, in reality, he was told to report
it in that manner; it was actually caused by an assault with
a pipe during a fight. He states that service connection
should be granted accordingly.
Service connection may be granted if the evidence establishes
that the claimed disability is related to service. Applying
the Hickson analysis, the initial question is whether there
is evidence of the current residuals of a broken jaw. The
appellant himself asserts that he had a broken jaw in service
and that he has current residuals thereof. The Court,
however, has held that a lay person, such as the appellant,
is not competent to offer evidence that requires medical
knowledge, such as the diagnosis or cause of a disability.
See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).
Following the veteran's filing of his claim, he submitted a
private medical statement dated in October 2003, from Dr.
F.M.P., D.D.S., his family dental practitioner. The
statement describes a considerable list of the veteran's
dental problems, including a deep bite malocclusion, evidence
of bruxing, gingival inflammation, abrasive wear of incisals
in linguals of certain teeth, missing teeth, restored teeth,
fractured teeth, and distal and facial caries, as well as
deteriorating occlusal amalgams in certain teeth.
In the October 2003, medical statement, Dr. F.M.P. explained
that the veteran's "chief concern was ongoing deterioration,
which was resultant of an injury that he suffered while on
active duty in the Navy in 1962." The statement went on to
explain that "by [the veteran's] description, at that time
he had a broken jaw and suffered injuries to the anterior
segment of his mouth." In the description of the veteran's
dental problems, Dr. F.M.P. noted that one of them, Tooth #9
was previously chipped and fractured, and that the veteran
had indicated that this had extended "back to his injury in
the Navy". A second involved a fracture at Tooth #10, that
the physician noted "also was apparently a part of the
injuries from 1962."
At first blush, it would appear that the foregoing statement
represents a competent medical opinion that relates the
current existence of residuals of a broken jaw. The Board
must observe in that regard, however, that the 2003 statement
of Dr. F.M.P. was expressly based upon information obtained
directly from the veteran, and no other stated or implied
source. The Court has held on a number of occasions that a
medical opinion premised upon an unsubstantiated account of a
claimant is of no probative value. See, e.g., Swann v.
Brown, 5 Vet. App. 229, 233 (1993) [generally observing that
a medical opinion premised upon an unsubstantiated account is
of no probative value, and does not serve to verify the
occurrences described]; Reonal v. Brown, 5 Vet. App. 458, 461
(1993) [the Board is not bound to accept a physician's
opinion when it is based exclusively on the recitations of a
claimant]. Consequently, the Board cannot accept this
account as competent medical evidence of current residuals of
a broken jaw injury, when the occurrence of the broken jaw
itself was based exclusively upon the recitations of the
claimant. Even if, for purposes of analysis, the 2003
medical statement were to be recognized as satisfying Hickson
element (1), the veteran's claim fails based upon the other
two Hickson elements.
Specifically, with respect to Hickson element (2), there is
no record of complaints, findings or treatment during active
service of a broken jaw. While there is documentation of an
injury to the veteran's mouth in June 1962, that injury was
characterized as a contusion to the lip caused by falling
against a ladder resulting in the displacement of four front
teeth. The service medical records, including the June 1962
injury record, shows no involvement of the jaw.
Consequently, it must be found that there is no documentation
that the veteran sustained a broken jaw in service. The
Board must therefore find that Hickson element (2) has not
been satisfied as to the claimed disorder.
Notwithstanding the lack of evidence of disease or injury
during service, service connection may still be granted if
all of the evidence, including that pertinent to service,
establishes that the disability was incurred in service. See
38 U.S.C.A. § 1113(b).
With respect to Hickson element (3), while the veteran has
expressed the opinion that he has current residuals of a
broken jaw, as noted above, the CAVC has held that a lay
person, such as the veteran, is not competent to offer
evidence that requires medical knowledge, such as the
diagnosis or cause of a disability. See Grottveit v. Brown,
5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App.
492, 495 (1992
By the same token, the observations of Dr. F.M.P. in his 2003
medical statement also fails to provide the necessary
competent evidence that would relate current residuals to an
injury to the jaw sustained in service. There is no
indication that Dr. F.M.P. had the benefit of a review of the
veteran's medical records, and no indication that his opinion
was based upon anything other than the history provided by
the veteran. As noted above, a medical opinion premised upon
an unsubstantiated account of a claimant is of no probative
value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233
(1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993)
Consequently, the Board cannot accept this account as
competent medical evidence of current residuals of an
inservice broken jaw injury.
The Board has reviewed the entire body of evidence, including
the private medical records, service medical records, service
personnel records, the veteran's written statements, and the
statements of the veteran's representative. In this case, no
competent medical evidence or opinion has been entered into
the record which links or relates a current disability to a
broken jaw allegedly sustained during the veteran's period of
active service.
The medical evidence, in fact, serves to contradict the
veteran's contention that he sustained a broken jaw in
service. Significantly, the service medical records show no
such injury either independently, or when matched to the
veteran's explanation of events in service. The service
medical record's documentation of the incident in which the
veteran claims his jaw was broken contradicts the veteran's
account of events.
Based upon the foregoing analysis, the Board finds that a
preponderance of the evidence in this case is against the
claim for service connection for residuals of a broken jaw.
As to the question of according reasonable doubt to the
veteran's claim, on the basis of a thorough review of the
record, it is concluded that there is no approximate balance
of the evidence for and against the claim. Indeed, the
preponderance of the evidence is against finding that the
veteran had a broken jaw in service or that he has currently
residuals of a broken jaw that was sustained in service, and
thus against the claim for service connection for residuals
of a broken jaw. As the preponderance of the evidence is
against the claim, the benefit-of-the-doubt doctrine does not
apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v.
Derwinski, 1 Vet. App 49 (1990). Accordingly, service
connection for the claimed disorder must be denied.
ORDER
Entitlement to service connection for residuals of a broken
jaw is denied.
REMAND
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
When the veteran filed his initial claim of entitlement to
service connection in September 2003, he characterized his
claims in terms of entitlement to service connection for a
"broken jaw with dental trauma," and entitlement to service
connection for a "dental condition secondary to dental
trauma." The former claim was addressed above and was
denied because there was no competent evidence of a broken
jaw in service or its current residuals.
The veteran is seeking in the latter claim, entitlement to
service connection for residuals of dental trauma for the
purpose of obtaining VA outpatient dental treatment and any
service-connected compensation benefits that may be due him.
Regulations authorize one-time dental examination and
treatment for a service-connected noncompensable dental
disability. See 38 U.S.C.A. § 1712 and 38 C.F.R. § 17.161.
The veteran does not contend that he is entitled to one-time
treatment; rather, he seeks VA dental treatment due to in-
service trauma, characterized as the displacement of his four
front teeth, as well as compensation based upon service-
connected status. The CAVC has held that a claim for service
connection is also considered to be a claim for VA outpatient
dental treatment. Mays v. Brown 5 Vet. App. 302 (1996).
Dental treatment is authorized for dental disorders due to
in-service trauma. See 38 U.S.C.A. § 1712; 38 C.F.R. §
17.161. Dental treatment is also authorized for compensable
service-connected dental disorders. Id.; 38 C.F.R. § 4.150
(2004). Treatable carious teeth, replaceable missing teeth,
dental or alveolar abscesses, periodontal disease (pyorrhea),
and Vincent's stomatitis are defined as non-disabling
conditions, and may be considered service connected solely
for the purpose of determining entitlement to dental
examinations or outpatient dental treatment. See 38 C.F.R.
§ 3.381.
The significance of a finding that a dental condition is due
to in-service trauma is that the veteran may be authorized to
receive any VA dental care indicated as reasonably necessary
for the correction of such service-connected noncompensable
condition or disability. See 38 C.F.R. § 17.161(c). Under
38 C.F.R. § 17.161(c), the term "service trauma" does not
include the intended effects of treatment provided during the
veteran's military service, including tooth extraction. See
VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). Pertinent
dental regulations require a determination as to whether the
dental condition was due to combat or trauma, when
applicable. See 38 C.F.R. § 3.381(b).
In dental cases, there are two possible agencies of original
jurisdiction, namely, the RO and the medical administration
service of the VAMC. The RO handles claims for service
connection, while the VAMC handles claims for outpatient
dental treatment. Both may be involved in the same case, and
the notice of disagreement may be sent to either facility.
In its March 2004 rating decision, the RO found that "dental
conditions are not disabilities for VA benefits purposes."
Essentially, this statement amounted to the denial of the
veteran's claim for entitlement to service connection for
residuals of dental trauma, in addition to the stated denial
of the claim of entitlement to service connection for
residuals of a broken jaw.
In his May 2004, notice of disagreement, the veteran not only
expressed disagreement with the denial of the claim of
entitlement to service connection for residuals of a broken
jaw, but also the denial of the claim of residuals of dental
trauma in general. The Board finds that this must be
construed as a timely notice of disagreement with regard to
the foregoing dental trauma claim. 38 U.S.C.A. § 7105 (West
2002); 38 C.F.R. §§ 19.26, 20.201, 20.302 (2004). When there
has been an initial RO adjudication of a claim and a notice
of disagreement has been filed as to its denial, the
appellant is entitled to a statement of the case, and the
RO's failure to issue a statement of the case is a procedural
defect requiring remand. Manlincon v. West, 12 Vet. App. 238
(1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995); see
also Bernard v. Brown, 4 Vet. App. 384 (1993).
Finally, the Board observes that additional due process
requirements may be applied as a result of the enactment of
the VCAA and its implementing regulations. See 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a) (2004).
Accordingly, this case is REMANDED for the following:
1. Issue the veteran proper VCAA notice
with regard to the issue of entitlement
to service connection for residuals of
dental trauma, to include for
compensation and/or for dental treatment
purposes in accordance with the decision
in Quartuccio v. Principi, 16 Vet. App.
183 (2002), as well as 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West 2002 &
Supp. 2005) and 38 C.F.R. § 3.159 (2004),
and any other applicable legal precedent.
This must include informing the appellant
of the information and evidence necessary
to substantiate his dental trauma claims,
notice of which evidence, if any, the
claimant is expected to obtain and submit
and which evidence will be retrieved by
VA; and notice that he should provide any
evidence in his possession that pertains
to the claims. If additional evidence is
received, readjudicate the issues of
entitlement to service connection for
residuals of dental trauma, to include
for compensation and/or for dental
treatment purposes.
2. If the benefits sought have not been
granted, the VBA AMC should issue a
Statement of the Case to the veteran on
behalf of the RO and the VAMC addressing
the issues of entitlement to service
connection for residuals of dental
trauma, to include for compensation
and/or for dental treatment purposes.
The appropriate period of time for a
response should be afforded. The veteran
must be advised of the time limit in
which he may file a substantive appeal.
38 C.F.R. § 20.302(b) (2004).
Then, only if the appeal is timely
perfected, the issue should be certified
to the Board for further appellate
consideration.
The appellant has the right to submit additional evidence and
argument on the matters that the Board has remanded to the
VBA AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999).
By this remand, the Board intimates no opinion as to any
final outcome warranted. No action is required of the
appellant until he is notified by the VBA AMC.
______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs